First and foremost, heartfelt thanks to Professors Bowman, McGuinness, and Reuben for their volunteering of their time and expertise.  Thursday’s OT07 Preview was a smashing success, and a good time was had by all.

A quick rundown of panel discussion impressions (you can access our agenda and case summaries here) …

Bowman on Sentencing (Gall v. U.S., and Kimbrough v. U.S.)

Professor Bowman kindly forwarded me his article in the Federal Sentencing Reporter upon which he based his presentation.  You can access it here.  As the title of Professor Bowman’s article (”The Question is Which is to be Master - That is All”) suggests, recent sentencing guideline decisions have turned into a struggle between trial courts and appelate courts over the discretion judges have in sentencing using elemental and non-elemental “facts.”  This power struggle has crowded-out Congress and the state legislatures whose statutory provisions initiated the mandatory sentencing debate in the first place.  Professor Bowman expressed concerns that the narrow intra-judicial battle could frustrate sentencing reform at both the state and federal level by leaving the legislative and executive branches out of the picture. 

As he proposes in his article, Bowman hopes that the Court will fashion “a rule that permits legislatures and their administrative sentencing commission surrogates to create fact-driven guidelines with a moderately presumptive effect allow[ing] the legislature to influence sentencing through rule making and the executive to influence sentencing through presentation of evidence but giv[ing] proper scope to the exercise of judicial intelligence and authority.” 

McGuinness on Medellín v. Texas

After outlining the complicated (convoluted?) procedural background (see our Medellín “Case Summary In-Depth” available here), Professor McGuinness turned her attention toward the attitudes of individual SCOTUS members toward the authority of international law.  McGuinness predicted that Justice Kennedy’s “cosmopolitan internationalism” could contribute to a decision in upholding Medellín’s right to a habeas hearing per the International Criminal Court’s ruling, and contrary to Texas’s procedural defaults.  Professor McGuinness also predicted that, if the Court rules for Medellin, the Court nevertheless will reassert its judicial authority to “say what the law is” as a counter to the President’s memorandum.   McGuinness also critiqued the issue in Medellín as one of American “death penalty exceptionalism.”

For much more on Medellín and things related,  see the “Medellín chain” on OpinioJuris.org.

Reuben on Election Cases (Washington State Grange v. Washington State Republican Party, New York Brd. of Elections v. Torres, and Crawford v. Marion County Election Brd.)

First, Professor Reuben outlined the recent case history leading up to Washington State Grange and Torres.  Both cases present “access to the ballot” issues that, under prior SCOTUS holdings informed by 1st Amendment “freedom of association” doctrine, likely would hold the challenged statutes invalid.

Second, Professor Reuben outlined the procedural (and political) background leading up to the Court’s granting cert. for Crawford (Indiana’s Voter ID case).  Reuben noted Judge Posner’s 7th Circuit Opinion’s  eschewing of a “strict standard” in favor of a “balancing test.”  While employment of a balancing test validates the Indiana statute, a strict scruitiny test could yield different results (e.g. the statute invalid due to an ”undue burden” on the right to vote).  Professor Reuben further noted that Indiana’s voter ID statute is the most stringent, and that states seeking to amend or implement their own statutes will look to the Court’s ruling in fashioning the stringency of their ID statutes’ requirements.

For more, see our previous post on voter ID statutes, and for all things election law, see the aptly-named Election Law Blog.